RATHEESH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as accused No.1 in the instant Crime No.388/2019 of Kanjiramkulam Police Station, Thiruvananthapuram, which has been registered for offences punishable under Sec. 447, 341, 294(b), 323, 324 and 345 read with Sec. 34 of the I.P.C . The petitioner herein, aged 24 years, has been arrayed as accused No.1. The petitioner's mother (who is in her 50s) and the petitioner's wife (who is in her early 20s), are accused Nos.2 and 3 respectively among the 3 accused in the abovesaid crime.

(2.) The prosecution case is that the lady defacto complainant, who is aged 53 years, is living in the immediate neighbourhood of the petitioner's residence and that she is a widow and all her 3 children have been married off and that she had come back to her residence after work on 12.5.2019 evening and when she was sitting in the veranda of her house at about 5.30 p.m., watching video songs in her mobile cell phone and at that time, the petitioner, on seeing her, misunderstood as if she was taking mobile pictures of the petitioner and being enraged at that, the petitioner had trespassed into her residence and assaulted and grabbed her (xxx xxx xxx) and had beaten on her cheek. That the petitioner had left her residence thereafter and later after about 10 minutes, the defacto complainant has left her residence by her scooter to visit her daughter living in the nearby locality and at that time, the petitioner's mother (A-2) and petitioner's wife (A-3 ) had obstructed her and had pushed her from the scooter and she had fallen down and at the time, the petitioner came there and had beaten her with an iron rod below her knee, etc. The abovesaid incident is said to have happened on 12.5.2019 at about 5.30 p.m., Whereas the first information statement has been given by the lady defacto complainant only on 15.5.2019 at about 1.10 in the after noon. The learned counsel for the petitioner would point out that the abovesaid versions of the lady defacto complainant are highly unbelievable and lack credibility. That a mere perusal of the first information statement would make it clear like the day light that the lady defacto complainant has not even a remotest whisper that the accused persons had any prior animosity against her. The only motive alleged by her is that at about 5.30 p.m. on 12.5.2019, she was seeing video songs in her mobile and at that the petitioner had misunderstood as if she was taking his video pictures and on being enraged at that, he came and assaulted her and the alleged incidents happened. It is pointed out that the act of seeing video pictures in the mobile and the act of taking photographs using the mobile cell are two different processes, for which two different postures are required and even going by the case of the defacto complainant, the petitioner was very much in her vicinity and if that be so, no reasonable prudent person would have misunderstood that the act on the part of the lady defacto complainant seeing videos songs in her mobile would amount to taking photographs of the petitioner using her mobile. Hence it pointed out that the very threshold of the story put forth by the lady defacto complainant regarding the very genesis of the incidents is highly unbelievable and thoroughly lacks credibility. Further that the note written by the investigating officer which is appended to the last portion of the FIS dated 15.5.2019, would clearly show that the only injury said to have been sustained by the lady defacto complainant is a superficial one (xxx xxx xxx) and if, as a matter of fact, the petitioner had seriously assaulted her and had beaten her with an iron rod on her knee and that she was pushed down from the scooter by accused 2 and 3, etc. then more serious injuries would have been noted in the body note. Further very crucially the learned counsel for the petitioner would urge that the alleged incident is said to have happened on 12.5.2019 at about 5.30 p.m., whereas the first information statement has been given by the lady defacto complainant as late as on 15.5.2019 at about 1.10 p.m. Hence it is pointed out that there is about 3 days' delay, which has not been explained by the prosecution in any manner. In that regard the petitioner's counsel has taken this Court's attention to vari0us decisions of the Apex Court including the one in State of Andhra Pradesh v. M.Madhusudhan Rao [(2008) 15 SCC 582], wherein the Apex Court has held that delay in lodging FIR will more often than not result in embellishments and exaggerations, which are creations of afterthoughts and delayed report, not only gets bereft of the advantages of spontaneity, but that the danger of introduction of coloured version, exaggerated account of incident or a concocted story as a result of deliberations and consultation also creeps in, casting a serious doubt on its veracity. Hence it has been held that it is highly essential that the delay in lodging the FIR should be satisfactorily and properly explained by the prosecution. That resultantly, when the substratum of the evidence given by the complainant is found to be unreliable, the prosecution case will have to be rejected in its entirety, etc. Hence the petitioner's counsel would strongly urge that the long delay of 3 days in this case, which has not been explained, would be fatal to the very prosecution case. Further the petitioner would point out that if, as a matter of fact, the allegation that a male person like the petitioner aged 24 years had grabbed (xxx xxx xxx) the lady defacto complainant was genuine and true, then certainly the first impulse of such a lady would be to immediately give information to the Police authorities, at least on the next day morning. The very fact that there has been long and unexplained delay of about 3 days in triggering the FIR, and in view of the lack of credibility about the threshold version regarding the genesis of the incidents about the video pictures, etc. would clearly show the falsity of the prosecution case or that the incidents would have happened not in the manner as suggested by the prosecution, but in some other manner. It is pointed out that the lady defacto complainant has no case that the petitioner had any animosity against her. Further it is pointed out that as a matter of fact the lady defacto complainant was a quarrelsome lady and she used to frequently quarrel with the ladies in the petitioner's house and the petitioner never interfered in any manner in such disputes and it is only on account of such disputes and animosity of the lady defacto complainant that she has raised the abovesaid false allegations. Further that the abovesaid circumstances would clearly show that the lady defacto complainant has waited for 3 days and has invented a story, presumably after legal advice, to project a case of offence of Sec. 354 of the I.P.C . so as to secure remand of the petitioner accused and to humiliate the petitioner and his family members at any cost. It is stated that the investigating agency has no case that the petitioner has any criminal antecedents or that the petitioner has raised any disputes with the lady defacto complainant either before or after the abovesaid incidents. Further it is pointed out that this Court had already granted anticipatory bail to A-2 and A-3 in this case and that the petitioner will fully co-operate with the investigating process and that the prosecution has no case that the petitioner is likely abscond or he will not co-operate with the investigation process and that this Court may grant anticipatory bail to the petitioner subject to any stringent conditions.

(3.) Sri.B.Jayasurya, the learned Prosecutor has seriously opposed the plea for anticipatory bail and has pointed out that offence as per Sec. 354 of the I.P.C . is disclosed in view of the allegations raised by the lady defacto complainant in the first information statement.